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Japan: High Court Calls Air Self-Defense Force Activities in Iraq Unconstitutional

(May 2, 2008) Article 9 of the Japanese Constitution renounces war and states: “land, sea, and air forces, as well as other war potential, will never be maintained.” The constitutionality of Japan's Self Defense Force (SDF) has been a legal, political, and social issue since the creation of the SDF.

Japan has supported the United States' operation in Iraq. Between March 2004 and July 2006, the Air SDF transported goods and U.S. and other countries' soldiers between the Ali Al Salem Air Base, in Kuwait, and the Tallil airbase, near An Nasiriyah, Iraq. After July 2006, the Air SDF transported goods and armed soldiers between the Ali Al Salem Air Base and the airport in Baghdad. Plaintiffs in the case demanded the suspension of the airlift on the basis that their right to live in a peaceful environment, which they claim the Constitution guarantees as a concrete right, has been violated by the Air SDF airlifts. They also claimed that the airlifts violated article 9 of the Constitution. The Nagoya High Court dismissed the case. Nonetheless, in its analysis of the case, the court said that the airlifts violated article 9 of the Constitution. It did not, however, say whether or not the special law that enabled the Japanese government to send troops to Iraq while limiting their activities to non-combat regions is against article 9. It stated that even if the law itself is constitutional, the Iraq airlifts violated the Constitution because Air SDF has been operating in a combat region, Baghdad airport, where airplanes have often been subject to attack by militants and the Air SDF activities are in too close proximity to combat activities, so that they are regarded as a part of them.

The plaintiffs are one of the groups that have organized similar lawsuits in various areas in Japan. They filed lawsuits of the same type in different areas, with a view to increasing their chances of obtaining a favorable judgment. To win the cases and change the government policy through an enforceable judgment is not their realistic goal; if they can obtain one judgment that suggests the SDF activities have been unconstitutional, they will be satisfied. In fact, most of the judgments have simply dismissed the claims, based on the plaintiffs' lack of concrete rights and standing to bring suit, without commenting on the constitutionality of the airlifts.

A lawyer for the plaintiffs said that while the court's comments on the Constitution were non-binding, the lawyers planned to work with lawmakers to pursue the issue in the Parliament. On the other hand, the government was indifferent. Chief Cabinet Secretary Nobutaka Machimura, Defense Minister Shigeru Ishiba, and other government leaders said that the government was not convinced by the High Court's decision and the ruling would not influence the current activities of the air force. In the legal community, there have been criticisms regarding this kind of expression of opinions by judges in judgments when they are not necessary to decide the case. (Judgment of H18 (ne) No. 499 (Nagoya High Ct., Apr. 17, 2008, available at &; “Kû-ji iraku haken wa kenpô 9 jô ni ihan” Nagoya kôsai handan [Dispatch of Air SDF against Article 9 of the Constitution …], ASAHI.COM, Apr. 17, 2008 (on file with author); Iken hanketsu ni kanbô chôkan ra, iraku shien keizoku “mondai nai” de icchi [Chief Cabinet Secretary and Others Agreed “No Problem” on Iraq Support], YOMIURI ONLINE, Apr. 18, 2008 (on file with author).)